Justice Dept. Reluctant to Bring ISIS Fighters to USA for Trial

Justice Department leaders are reluctant to recommend U.S.-based criminal trials for two Islamic State militants captured and detained in Syria, according to American officials who said that, even though federal prosecutors believe they can win in court, it is unclear whether there is sufficient evidence to secure convictions and lengthy prison terms.

At the same time, senior Trump administration officials are adamant that Britain bears responsibility to prosecute the men, Alexanda Kotey, 34, and El Shafee Elsheikh, 29, whose British citizenships were revoked over their alleged affiliation with an ISIS cell suspected of murdering Westerners.

Further complicating matters, Attorney General Jeff Sessions would prefer that Kotey and Elsheikh be sent to the U.S. military detention facility in Guantanamo Bay, Cuba, though he has recognized the success of federal terrorism prosecutions.

State Department officials are wary of undermining the U.S. government’s position that terrorist fighters captured overseas should be returned to their countries of origin.

The complicated U.S. policy discussion, and the impasse between the United States and Britain, is testing the patience of the victims’ families, who anxiously await a decision they hope will result in justice through a fair and open trial. They oppose sending the men to Guantanamo, which they view as fuel for terrorists’ narrative of abuse and mistreatment by U.S. authorities.

Slowing the process is a turnover in leadership in London, where a new Home Secretary just took office, and in Washington, where John Bolton last month became President Donald Trump’s national security adviser.

“We really don’t have any commitment that the U.S. is going to actually take on their case,” said Diane Foley, whose son, journalist James Foley, was beheaded by the Islamic State in 2014. Foley and the relatives of three other deceased American hostages met in recent days with Bolton and Assistant Attorney General for National Security John Demers. The officials were sympathetic listeners, she said, but they could not offer much guidance. “It’s all very much still up in the air,” she said.

Trump issued an executive order in January to leave Guantanamo open. At his direction, Defense Secretary Jim Mattis has developed criteria for transferring terrorist suspects captured on the battlefield to the prison, including that they be high-value and members of groups such as al-Qaida or the Islamic State. The Pentagon also is eager for the British to take custody of Kotey and Elsheikh, in part to ease the pressure on the United States’ main ally in Syria, the Kurdish-dominated Syrian Democratic Forces, which has become taxed by having to detain hundreds of captured foreign fighters.

The families, Foley said, hope to speak with Trump and Mattis.

The White House declined to comment, as did the Pentagon, Justice Department and State Department. “We continue to work extremely closely with the U.S. government on this issue . . . in the context of our joint determination to tackle international terrorism and combat violent extremism,” a British government spokesman said.